The Legislature finds that there is a real and growing threat
to the safety and sanctity of unmarked human graves in West
Virginia and the existing laws of the state do not provide equal or
adequate protection for all such graves. As evident by the
numerous incidents in West Virginia which have resulted in the
desecration of human remains and vandalism to grave markers, there
is an immediate need to protect the graves of earlier West
Virginians from such desecration. Therefore, the purpose of this
article is to assure that all human burials be accorded equal
treatment and respect for human dignity without reference to ethnic
origins, cultural backgrounds, or religious affiliations.

The Legislature also finds that those persons engaged in the
scientific study or recovery of artifacts which have been acquired
in accordance with the law are engaged in legitimate and worthy
scientific and educational activities. Therefore, this legislation
is intended to permit the appropriate pursuit of those lawful
activities.

Finally, this legislation is not intended to interfere with
the normal activities of private property owners, farmers, or those
engaged in the development, mining or improvement of real property.
(b) Definitions. --

(2) "Unmarked grave" means any grave or location where a human
body or bodies have been buried or deposited for at least fifty
years and the grave or location is not in a publicly or privately
maintained cemetery or in the care of a cemetery association, or is
located within such cemetery or in such care and is not commonly
marked;

(3) "Grave artifact" means any items of human manufacture or
use that are associated with the human skeletal remains in a grave;

(4) "Grave marker" means any tomb, monument, stone, ornament,
mound, or other item of human manufacture that is associated with
a grave;

(5) "Person" means any individual, partnership, firm, society,
association, trust, corporation, other business entity or any
agency, unit or instrumentality of federal, state or local
government;

(7) "Native American tribe" means any Indian tribe, band,
nation, or organized group or community which is recognized as
eligible for the special programs and services provided by the United States to Indians because of their status as Indians;

(8) "Cultural affiliation" means the relationship of shared
group identity which can be reasonably traced historically or
prehistorically between a present day group and an identifiable
earlier group;

(9) "Lineal descendants" means any individuals tracing his or
her ancestry directly or by proven kinship; and

(10) "Proven kinship" means the relationship among people that
exists because of genetic descent, which includes racial descent.

(c) Acts prohibited; penalties; exceptions. --

(1) No person may excavate, remove, destroy, or otherwise
disturb any historic or prehistoric ruins, burial grounds,
archaeological site, or human skeletal remains, unmarked grave,
grave artifact or grave marker of historical significance unless
such person has a valid permit issued to him or her by the Director
of the Historic Preservation Section: Provided, That the
supervising archaeologist of an archaeological investigation being
undertaken in compliance with the federal Archaeological Resources
Protection Act (Public Law 96-95 at 16 USC 470(aa)) and regulations
promulgated thereunder is not required to obtain such permit, but
shall notify the Director of the Historic Preservation Section that
such investigation is being undertaken and file reports as are
required of persons issued a permit under this section: Provided,
however, That projects being undertaken in compliance with section
106 of the National Historic Preservation Act of 1966, as amended, or subsection (a), section five of this article is not required to
obtain such permit for excavation, removal, destruction or
disturbance of historic or prehistoric ruins or archaeological
sites.

(2) A person who, either by himself or herself or through an
agent, intentionally excavates, removes, destroys or otherwise
disturbs any historic or prehistoric ruins, burial grounds or
archaeological site, or unmarked grave, grave artifact or grave
marker of historical significance without first having been issued
a valid permit by the Director of the Historic Preservation
Section, or who fails to comply with the terms and conditions of
such permit, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $100 nor more than $500,
confined in jail for not more than six months, or both fined and
confined.

(3) A person who, either by himself or herself or through an
agent, intentionally excavates, removes, destroys or otherwise
disturbs human skeletal remains of historical significance without
first having been issued a valid permit by the Director of the
Historic Preservation Section, or who fails to comply with the
terms and conditions relating to disinterment or displacement of
human skeletal remains of such permit, is guilty of the felony of
disinterment or displacement of a dead human body or parts thereof
under section fourteen, article eight, chapter sixty-one of this
code and, upon conviction thereof, shall be imprisoned in a state correctional facility not more than five years.

(4) A person who intentionally withholds information about the
excavation, removal, destruction, or other disturbance of any
historic or prehistoric ruins, burial grounds, archaeological site,
or human skeletal remains, unmarked grave, grave artifact or grave
marker of historical significance is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $100, or
confined in jail not more than ten days, or both fined and
confined.

(5) A person who, either by himself or herself or through an
agent, offers for sale or exchange any human skeletal remains,
grave artifact or grave marker obtained in violation of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $1,000 nor more than $5,000 or
confined in jail not more than one year, or both fined and
confined.

(6) Each instance of excavation, removal, destruction,
disturbance or offering for sale or exchange under subdivisions (1)
through (5) of this subsection shall constitute a separate offense.

(7) It is a complete defense in a prosecution under this
section if the defendant can prove by a preponderance of evidence
that the alleged acts were accidental or inadvertent and that
reasonable efforts were made to preserve the remains accidentally
disturbed or discovered, and that the accidental discovery or
disturbance was properly reported.

(8) This subsection does not apply to actions taken in the
performance of official law-enforcement duties.

Upon the discovery of human skeletal remains, grave artifact
or grave marker in an unmarked grave on any publicly or privately
owned property, the person making such discovery shall immediately
cease any activity which may cause further disturbance, make a
reasonable effort to protect the area from further disturbance and
notify the county sheriff within forty-eight hours of the discovery
and its location. If the human remains, grave artifact or grave
marker appear to be from an unmarked grave, the sheriff shall
promptly, and prior to any further disturbance or removal of the
remains, notify the Director of the Historic Preservation Section.
The director shall cause an on-site inspection of the disturbance
to be made to determine the potential for archaeological
significance of the site: Provided, That when the discovery is
made by an archaeological investigation permitted under state or
federal law, the supervising archaeologist shall notify the
Director of the Historic Preservation Section directly.

If the Director of the Historic Preservation Section
determines that the site has no archaeological significance, the
removal, transfer and disposition of the remains shall be subject
to the provisions of article thirteen, chapter thirty-seven of this
code, and the director shall notify the circuit court of the county wherein the site is located.

If the Director of the Historic Preservation Section
determines that the site has a potential for archaeological
significance, the director shall take such action as is reasonable,
necessary and prudent, including consultation with appropriate
private or public organizations, to preserve and advance the
culture of the state in accordance with the powers and duties
granted to the director, including the issuance of a permit for the
archaeological excavation or removal of the remains. If the
director determines that the issuance of a permit for the
archaeological excavation or removal of the remains is not
reasonable, necessary or prudent, the director shall provide
written reasons to the applicant for not issuing the permit.

(e) Issuance of permits. --

Prior to the issuance of a permit for the disturbance of human
skeletal remains, grave artifacts, or grave markers, the director
of historic preservation shall convene and chair an ad hoc
committee to develop permit conditions. The committee shall be
comprised of the chair and six or eight members representing known
or presumed lineal descendants, private and public organizations
which have cultural affiliation to the presumed contents of the
site, the Council for West Virginia Archaeology and the West
Virginia Archaeological Society. In the case of Native American
sites, the membership of the committee shall be comprised of the
chair and six or eight members representing the Council for West Virginia Archaeology, the West Virginia Archaeological Society, and
known or presumed lineal descendants, preferably with cultural
affiliation to tribes that existed in the geographic area that is
now West Virginia.

In the case of a site of less then five acres, which is owned
by an individual or partnership, the ad hoc committee must be
formed within thirty days of application for same by the property
owner, must meet within sixty days of such application, and must
render a decision within ninety days of such application.

All such permits shall at a minimum address the following
conditions: (1) The methods by which lineal descendants of the
deceased are notified prior to the disturbance; (2) the respectful
manner in which the remains, artifacts or markers are to be removed
and handled; (3) scientific analysis of the remains, artifacts or
markers and the duration of those studies; (4) the way in which the
remains may be reburied in consultation with any lineal
descendants, when available; (5) methods for the respectful
curation of recovered items; and (6) such other conditions as the
director may deem necessary. Expenses accrued in meeting the
permit conditions shall be borne by the permit applicant, except in
cases where the deceased descendants or sponsors are willing to
share or assume the costs. A permit to disturb human skeletal
remains, grave artifacts or grave markers will be issued only after
alternatives to disturbance and other mitigative measures have been
considered.

In addition, a person applying for a permit to excavate or
remove human skeletal remains, grave artifacts, grave markers, or
any historic or prehistoric features of archaeological significance
may provide to the ad hoc committee information he or she deems
appropriate and shall:

(1) Provide a detailed statement to the Director of the
Historic Preservation Section giving the reasons and objectives for
excavation or removal and the benefits expected to be obtained from
the contemplated work;

(2) Provide data and results of any excavation, study or
collection in annual reports to the Director of the Historic
Preservation Section and submit a final report to the director upon
completion of the excavation;

(3) Obtain the prior written permission of the owner if the
site of such proposed excavation is on privately owned land; and

The permits shall be issued for a period of two years and may
be renewed at expiration. The permits are not transferable but
other persons who have not been issued a permit may work under the
direct supervision of the person holding the permit. The person or
persons to whom a permit was issued must carry the permit while
exercising the privileges granted and must be present at the site
whenever work is being done.

Notwithstanding any other penalties to which a person may be subject under this section for failing to comply with the terms and
conditions of a permit, the permit of a person who violates any of
the provisions of this subsection shall be revoked.

As permits are issued, the Director of the Historic
Preservation Section shall maintain a catalogue of unmarked grave
locations throughout the state.

(f) Property tax exemption for unmarked grave sites. --

To serve as an incentive for the protection of unmarked
graves, the owner, having evidence of the presence of unmarked
graves on his or her property, may apply to the Director of the
Historic Preservation Section for a determination as to whether
such is the case. Upon making such a determination in the
affirmative, the Director of the Historic Preservation Section
shall provide written certification to the landowner that the site
containing the graves is a cemetery and as such is exempt from
property taxation upon presentation of the certification to the
county assessor. The area of the site to receive property tax
exempt status shall be determined by the Director of the Historic
Preservation Section. Additionally, a property owner may establish
protective easements for the location of unmarked graves.

(1) The prosecuting attorney of the county in which a
violation of any provision of this section is alleged to have
occurred may be requested by the Director of the Historic Preservation Section to initiate criminal prosecutions or to seek
civil damages, injunctive relief and any other appropriate relief.
The Director of the Historic Preservation Section shall cooperate
with the prosecuting attorney in resolving such allegations.

(2) Persons convicted of any prohibited act involving the
excavation, removal, destruction, disturbance or offering for sale
or exchange of historic or prehistoric ruins, burial grounds,
archaeological site, human skeletal remains, unmarked grave, grave
artifact or grave marker under the provisions of subdivisions (1)
and (2), subsection (c) of this section shall also be liable for
civil damages to be assessed by the prosecuting attorney in
consultation with the Director of the Historic Preservation
Section.

Civil damages may include:

(i) Forfeiture of any and all equipment used in disturbing the
protected unmarked graves or grave markers;

(ii) Any and all costs incurred in cleaning, restoring,
analyzing, accessioning and curating the recovered material;

(iii) Any and all costs associated with recovery of data, and
analyzing, publishing, accessioning and curating materials when the
prohibited activity is so extensive as to preclude the restoration
of the unmarked burials or grave markers;

(iv) Any and all costs associated with restoring the land to
its original contour or the grave marker to its original condition;

(v) Any and all costs associated with reinterment of the human skeletal remains; and

(vi) Any and all costs associated with the determination and
collection of the civil damages.

When civil damages are recovered, the proceeds, less the costs
of the prosecuting attorney associated with the determination and
collection of such damages, shall be deposited into the Endangered
Historic Properties Fund and may be expended by the Commissioner of
Culture and History for archaeological programs at the state level,
including the payment of rewards for information leading to the
arrest and conviction of persons violating the provisions of
subdivisions (1) and (2), subsection (c) of this section.

(3) The Commissioner of Culture and History is authorized to
offer and pay rewards of up to $1,000 from funds on deposit in the
Endangered Historic Properties Fund for information leading to the
arrest and conviction of persons who violate the provisions of
subdivisions (1) and (2), subsection (c) of this section.

(h) Disposition of remains and artifacts not subject to
reburial. --

All human skeletal remains and grave artifacts found in
unmarked graves on public or private land, and not subject to
reburial, under the provisions of subsection (e) of this section,
are held in trust for the people of West Virginia by the state and
are under the jurisdiction of the Director of Historic
Preservation. All materials collected and not reburied through
this section shall be maintained with dignity and respect for the people of the state under the care of the West Virginia State
Museum.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.